When Justice Becomes Mere Technicality - Wendy Kaminer - The Atlantic

in war truth is the first casualty

Traditional law-and-order, lock-'em-up-and-throw-away-the-key advocates have always harbored contempt for legal technicalities -- by which they mean the Fourth, Fifth, and Sixth Amendment rights of the accused. But those rights have been eviscerated in the last 30 years. The war on terror delivered the coup de grace to any fundamental privacy and fair trial rights left intact by the war on drugs. These days, legal technicalities are more often invoked by judges and especially prosecutors -- not to imprison the guilty but to keep the not guilty from going free.

"A claim of actual innocence is not itself a constitutional claim," the late Chief Justice Rehnquist declared in a notorious 1993 death penalty case, rejecting a habeas petition based on evidence of innocence uncovered after the defendant's conviction of capital murder. As Justice Scalia observed in concurrence: "There is no basis ... for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction."...

When Justice Becomes Mere Technicality - Wendy Kaminer - National - The Atlantic